1. RULE 11 Terminology Big theme “Satellite litigation”
Deter bad behavior v.
Increase cost of litigation
More strategic use of rules

2. WHERE WE ARE Pleadings Pre-Trial Trial & Post-Trial Appeal Complaint
Answer
12(b) Motions
Amended
Pleadings
Pre-Trial
Trial & Post-Trial
Appeal

3. PLEADING The Complaint
Task 1: The Law
Elements?
Explicit v. Implicit
Task 2: The Facts
Include?
How specific?
Task 3: The Format
Details, details, details
Rule 11:
How much research?
Rule 11:
How much
Investigation?
Rule 9:
Special Pldg Req’ts?

4. WHERE WE ARE Approaches to pleading Federal Rules Common law writs
specialized requirements
Code pleading
focus on facts
Check the box
access for pro se’s
Federal Rules
Rule 8
lenient approach to pleading
Rule 11
additional requirements

5. WHERE WE ARE Today Stricter Pleading Req’ts? Rule 9 Court rulings
12(b)(6) motions to dismiss

6. THE ADVISORY COMMITTEE
What it is
Appointed by “Judicial conference”
Who is on it
Judges
Academics
Lawyers
How it works
“Transparency”

7. THE ADVISORY COMMITTEE Amend Rule 9?
The Proposals
Repeal Rule 9(b) req’t for fraud
“averments of fraud shall be stated with particularity”
Amend Rule 9
“averments in civil rights actions shall be stated with particularity”

8. THE ADVISORY COMMITTEE Amend Rule 9?
The Proposals
Repeal Rule 9(b) req’t for fraud
“averments of fraud shall be stated with particularity”
Amend Rule 9
“averments in civil rights actions shall be stated with particularity”

9. INSTITUTIONAL COMPETENCE
Heightened pleading requirements
Who should decide?

10. TAKEAWAYS Procedure isn’t neutral! Federal Rules
Liberal Pleading Requirement
Limited by
Rule 11
Rule 9
Pressure from courts

11. TAKEAWAYS Significance of pleading reqt’s Access to courts
Strict pleading = barrier to decision on merits
Cost of judicial process
Liberal pleading  Increase costs?
Impact on negotiations
“Bargaining in the Shadow of the Law”